February 04, 2014
On January 27, 2014, the Supreme Court issued its decision in Burrage v. United States. This case concerns a 20-year mandatory minimum penalty that applies when a defendant distributes an unlawful drug and “death or serious bodily injury results from the use of such substance.” The question here is whether this provision applies when use of a covered drug supplied by the defendant contributes to--but is not a “but-for” cause of--the victim's death or injury. The U.S. Court of Appeals for the Eighth Circuit upheld a lower court jury instruction that the drug need only be a contributing cause of death.
By a vote of 9-0, the Supreme Court reversed the Eighth Circuit's judgment and remanded the case for further proceedings. In an opinion delivered by Justice Scalia, the Court held that, at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the 20-year penalty enhancement unless such use is a but-for cause of the death or injury. The Chief Justice and Justices Kennedy, Thomas, Breyer, and Kagan joined Justice Scalia's opinion, and Justice Alito joined the opinion as to all except Part III-B. Justice Ginsburg filed an opinion concurring the judgment, which Justice Sotomayor joined.
To discuss this case, we have John Malcolm, Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow at the Heritage Foundation's Edwin Meese III Center for Legal and Judicial Studies.